Shape trade marks have been debated before in the confectionary world, but now it’s the battle of the square.
Ritter Sport, a chocolate brand based in Germany, has been producing and selling their multiple flavours of chocolate in a unique square shape for over 80 years. As part of their protection, the company registered the shape as a trade mark in Germany in 1993. This remained unchallenged for a number of years.
However, in 2010 rival chocolate brand Milka, made in Switzerland, started to produce square chocolate bars, and Ritter filed a claim against them.
The matter has gone back and forth, with the first round being won by Milka. However, the ruling was thrown out on appeal, and it was decided Ritter’s trade mark remained valid.
Milka, who are now owed by Mondelez (the owners of Toblerone and no stranger to shape trade mark spats) tried once more to swing the decision in their favour and appealed the decision to the Federal Court of Justice.
The Judges considered the case as a whole and confirmed that while a shape which gave the product essential value could not be protected as a trade mark, this was not the case here. The judges confirmed that the use of a square in respect of a chocolate bar would represent to a customer from whom the chocolate is from and therefore the quality of it. Therefore, they threw out Milka’s final attempt to get one up, and awarded the right to Ritter to maintain as the only square on the chocolate shelf in Germany.
If you have any trade mark matters you want to discuss or you just want to chat about chocolate, please get in touch with the IP team today.